Bentley v. Bentley, 2140707.

• Decision Date: 22 April 2016
• Docket Number: 2140707.
• Citation: 222 So.3d 1165
• Parties: Landon BENTLEY v. Molly BENTLEY. Molly Bentley v. Landon Bentley.
• Court: Alabama Court of Civil Appeals

222 So.3d 1165

Landon BENTLEY

v.Molly BENTLEY.

Molly Bentley

v.Landon Bentley.

2140707.

Court of Civil Appeals of Alabama.

April 22, 2016.

Certiorari Denied Nov. 11, 2016

Alabama Supreme Court 1150829.

Rachel Stewart Martin, Birmingham, for appellant/cross–appellee Landon Bentley.

Stephen R. Arnold, Birmingham, for appellee/cross–appellant Molly Bentley.

DONALDSON, Judge.

Landon Bentley ("the husband") appeals from a judgment of the Jefferson Circuit Court ("the trial court") divorcing him from Molly Bentley ("the wife") insofar as it granted the wife sole legal and sole physical custody of the parties' children and awarded the wife certain funds that the husband contends were his separate property. The wife cross-appeals from the judgment insofar as it imputes income to the wife for the purpose of determining the husband's child-support obligation. For the reasons set forth below, we affirm the judgment.

Background

The husband and the wife were married in February 2001. Two children were born of the marriage. On March 18, 2014, the wife filed a complaint for a divorce in the trial court, citing incompatibility of temperament and an irretrievable breakdown of the marriage as grounds for the divorce. The wife requested sole legal and sole physical custody of the children. She also requested that the husband be required to pay child support. The husband filed an answer and a counterclaim, in which he requested that the parties be granted joint custody of the children and that the trial court refrain from including his inherited, nonmarital assets in the marital estate. The trial court held a trial on February 2, 2015, at which it received the testimony of the parties.

The trial court entered a judgment on February 17, 2015. In the judgment, as amended by an order entered on April 24, 2015, the trial court made the following determination pertaining to the custody of the parties' children:

"4. ... [I]t is in the welfare and best interest of the minor children of the parties ... that the care and custody and control of the ... children be ... awarded as shared custody, with the primary residence being with the [wife].

"I. Shared parental responsibility (Joint Custody) for a minor child means that both parents retain full parental rights and responsibilities with respect to their children and requires both parents to confer so that major decisions affecting the welfare of the children will be determined jointly.

"II. Both [the wife and the husband] have expressed a desire to be involved in the various activities of their minor children. These include academic, religious, civic, cultural, athletic, medical and dental activities of the minor child[ren]. [The wife and the husband] shall consult with each other prior to initiating any such activity with the minor children. [The wife and the husband] shall cooperate with one another in adjusting their schedules to assure that the children are delivered to and returned [and] both parties will consult with one another regarding all such activities.... That [the wife and the husband] will notify one another as to any conferences, programs or events relating to such activities in such a way that both parties will have an opportunity to participate in such activities of the minor children.

"III. Should [the wife and the husband] be unable to agree on any aspect of the academic, religious, civic, cultural, athletic or medical and dental, activities of the minor children, [the wife] is hereby designated as having the primary authority and responsibility regarding the involvement of the minor children in said activities. The exercise of this primary authority is in no way intended to negate the responsibility of the parties to notify and communicate with each other as set forth hereinabove.

"5. [The husband] shall have the right to custodial time with the minor children of the parties in accordance with the following PARENTING PLAN:

"A. The first, third, and every other fifth full weekends of each month beginning the first Friday following this decree from 6:00 p.m. on Friday until the following Monday when the children are returned to school. Should the children's school be out due to a recognized Federal holiday, teacher work shop day or unused bad weather day, [the husband] shall return the children to school that following Tuesday. (First weekend is the first full weekend, of the month and if there is a fifth Friday of a month)"

(Capitalization in original).

The trial court also divided the parties' marital property. In the property division, the trial court included the husband's interest in the Bentley Family Partnership ("the partnership"), an entity created by the husband's father as a vehicle for transferring assets to the husband and his two brothers. The pertinent portion of the trial court's judgment provides:

"25. That [the wife] is awarded Three Hundred Thousand Dollars ($300,000.00) from [the husband's] one-third interest of the Bentley Family Partnership which on the date of trial had an approximate value of One Million One Hundred Thirty Three–Thousand Dollars ($1,133,00.00). [The wife] is divested from any remaining interest in said account...."

The husband, his two brothers, and their father were partners in the partnership. The husband's interest in the partnership increased after the death of his father and one of his brothers. The husband testified that his father made all contributions to the partnership but that the partnership also earned income in the form of dividends and interest. The husband testified that the partnership income attributable to his share of the partnership had been reported on his and the wife's joint tax returns. The husband testified that he and the wife had discussed utilizing his interest in the partnership as their retirement fund in lieu of setting up other retirement accounts. The husband testified that he had never received any distributions of funds or assets from the partnership.

The trial court also ordered the husband to pay $819 in monthly child support. The trial court acknowledged that it had considered the Form CS–41 "Child–Support–Obligation Income Statements/Affidavit" ("CS–41 income affidavit") submitted by each party in establishing the child-support amount. In her CS–41 income affidavit, the wife stated that she earned a monthly income of $1,800. In his CS–41 income affidavit, the husband stated that he was not earning income. Because of the value of certain assets belonging to the husband, including the husband's interest in the partnership and certain other assets that are in addition to the husband's interest in the partnership that are not at issue in this appeal, the trial court imputed an income of $5,000 per month to the husband. Regarding the wife's income, the trial court stated in its judgment:

"[The wife] testified her minimum month[ly] expenses (some which include the children's expenses) were [$3,230].... [The wife] saved approximately [$19,000] since the filing of the Complaint for Divorce on or about March 18, 2014, to date of trial. Therefore, the Court imputes a monthly income to [the wife] of [$3,500].

"....

"... The child support is set pursuant to Rule 32 Child Support Guidelines, Rule of Judicial Administration[,] after Court imputed income to the parties. Child Support Guideline Forms, [the wife's] CS–41, [the husband's] CS–41 and the CS–42, are filed in this cause."

The wife and the husband both filed timely motions to alter, amend, or vacate various provisions of the judgment pursuant to Rule 59, Ala. R. Civ. P. In his postjudgment motion, the husband requested, among other things, that the trial court grant him decision-making authority over certain aspects of the children's lives and that the visitation provisions of the judgment be modified to grant him additional custodial time with the children. The trial court held a hearing on the postjudgment motions on April 13, 2015. On April 24, 2015, the trial court entered an order modifying the visitation provisions of the judgment and the provision of the judgment relating to health insurance for the children but denying all other relief requested by the parties in their respective postjudgment motions. The husband filed a timely notice of appeal. The wife filed a timely cross-appeal.

Discussion

On appeal, the husband challenges the trial court's determination regarding custody of the children and the trial court's determination that his interest in the partnership was a marital asset. On cross-appeal, the wife contends that the trial court incorrectly assigned a monthly income to her of $3,500.

I. The Husband's Appeal

A. Custody

The husband contends that the judgment is inconsistent because, he asserts, although the trial court concluded that "shared" custody would be in the best interest of the children, the trial court granted the wife sole legal and sole physical custody of the children. The husband also contends that the trial court's determination to grant sole legal and sole physical custody of the children to the wife is not supported by the evidence.

The judgment provides that the parties shall have "shared parental responsibility" and granted "shared custody" of the children "with the primary residence being with [the wife]." The judgment appears to equate the terms "shared custody" and "shared parental responsibility" with "joint custody" and defines "shared parental responsibility" as an arrangement in which "both parents retain full parental rights and responsibilities with respect to their children and requires both parents to confer so that major decisions affecting the welfare of the children will be determined jointly."

The husband correctly notes in his brief on appeal that § 30–3–151, Ala.Code 1975, a part of Alabama's joint-custody statutes, Ala.Code 1975, §§ 30–3–150 through –157, does not contain a definition for the terms "shared custody" or "shared parental responsibility" as used in the judgment. "As we have explained before, the proper terms...